SA Police v Terence Bruce Wilson No. 4206 Judgment No. SCGRG 93/1328 Number of Pages 5 Criminal Law Particular Offences

[1993] SASC 4206

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - particular offences - Appeal by complainant following dismissal of complaint alleging that the respondent was in possession of a piece of equipment for use in connection with the smoking of a prohibited substance, namely, Cannabis - respondent found to have in his possession a small brass pipe bowl, with a serrated rim and a machined screw base, but no stem - the respondent admitted that he used it for smoking Cannabis - held that the Magistrate erred in holding that 'a piece of equipment' means a piece of equipment 'sufficient to carry out the prohibited purpose' and as the bowl alone, as opposed to the complete pipe, could not be used for smoking, dismissing the charge - held that it was sufficient to justify a conviction if there was possession of a substantial part of a whole piece of equipment. Controlled Substances Act 1984s.31. Ladner (1976) 15 SASR 49; Barker (1988) 143 LSJS 480 at 485; Tran Nominees Pty Ltd v Scheffler and Ors (1986) 42 SASR
361 at 391; Bobridge v Sweatman (1979) 83 LSJS 143; McCarthy v Liddy (1984) 115 KSHS 251; Bock v Glenn (1984) 115 LSJS 245 and Smith (1992) 58 SASR 491, considered.

HRNG ADELAIDE, 23 September 1993 #DATE 30:9:1993
Counsel for appellant:     Mr S. Gupta
Solicitors for appellant:    Crown Solicitor (SA)
Counsel for respondent:     Ms H.A. Whimp
Solicitors for respondent: Aboriginal Legal Rights
   Movement

ORDER
Appeal allowed.

JUDGE1 PERRY J This is an appeal by the complainant against the dismissal of a charge heard in the Murray Bridge Magistrates Court that the respondent on 23 December 1992 at Murray Bridge had in his possession a piece of equipment for use in connection with the smoking of a prohibited substance, namely, Cannabis, contrary to s.31 of the Controlled Substances Act 1984. 2. The respondent did not appear in answer to the complaint, and the hearing proceeded ex parte. 3. One witness was called, Constable Pearson, who gave evidence that on the day in question he and another senior constable found the respondent in a condition which was described as "grossly affected by liquor" in Bridge Street at Murray Bridge. He was taken to the police station where he was detained under the Public Intoxication Act. Before being placed in the cells, he was searched. During the course of the search they located what was described as "a small bowl" in his right rear pocket, which I assume to be the pocket of his trousers. The respondent became argumentative and aggressive and it was thought necessary to place him in a padded cell for his own protection. 4. Constable Pearson stated that he had a conversation with the respondent after finding the bowl. The conversation took place "in the cell at the charge counter". 5. His evidence was, "I asked him what the bowl was used for", to which the respondent replied, "Smoking cannabis, fuck it". His evidence continued: "A. I asked him the last time he used it to smoke cannabis. He told me to "piss off", and at that stage got aggressive and required me and Senior Constable William to restrain him." 6. After the respondent had been placed in the cells, Constable Pearson filled out what he described in evidence as a "on the spot cannabis infringement notice" which in fact was an Expiation Notice given under the Controlled Substances Act. The notice described the offence as "Possess Equip". Under the heading "Particulars of Offences", the expiation notice, which was tendered at the hearing, contains an account of the searching of the respondent, and the conversation to which I have referred. 7. The bowl the subject of the charge is a small brass bowl with a serrated rim, and a machined screw base. It lacks a stem. The interior of the bowl is discoloured in a manner consistent with something having been smoked in it at some time. 8. The learned Magistrate delivered his judgment ex tempore. In the course of doing so he said:
    "The bowl as I see it, would not be a piece of equipment
    used in connection with the smoking of Indian Hemp. It is a
    part of a pipe and so in no sense could it be said that the
    defendant had in his possession a piece of equipment for use in
    connection with the smoking of Indian Hemp." 9. After referring to dictionary definitions of the word "piece" which were to the effect that "a piece" is a portion or part broken or separated from the whole, he went on to say:
    "The Act refers to a piece of equipment. As I have,
    already said, we have only got part of the pipe, P1. In the
    circumstances to my mind we don't, therefore, have a piece of
    equipment. Although the bowl is a "piece" it is not by itself,
    equipment for the smoking of Indian Hemp. Essentially my
    interpretation is that a pipe as a whole is necessary." He continued:
    "APP Probert submits that the definitions just referred to
    from the Collins and Oxford dictionaries would support an
    interpretation that a part of a pipe is sufficient to constitute
    a piece of equipment. Literally, of course, Mr Probert is
    right. The Act, nevertheless, is a punitive provision. It is
    necessary to interpret the provisions strictly. What the
    legislation strikes at, in my view, is the possession of
    equipment which would be sufficient to carry out the prohibited
    purpose, namely, the smoking of a prohibited substance. That is
    not what we have here. The bowl cannot be said to be a piece of
    equipment capable of being used by itself for the purpose of
    smoking a prohibited substance. For that reason I find there is
    insufficient evidence to support the charge and dismiss the
complaint." 10. The relevant parts of s.31 of the Controlled Substances Act 1984 are:
    "31(1) A person shall not -
     (a) knowingly have in his possession a drug of dependence or a
    prohibited substance.
     (b) .......
     (c) have in his possession any piece of equipment for use in
    connection with the smoking, consumption or administration of
such a drug or substance, ...... " 11. In Ladner (1976) 15 SASR 49, Bray CJ observed with respect to the same phrase where it appeared in the Narcotic and Psychotropic Drugs Act (52): "I think that the phrase 'for use in connection with the preparation, smoking or administration of any drug' et cetera refers to the purpose for which the possessor intends to use the thing in the future, not the purpose for which the thing was manufactured or designed." 12. In Barker (1988) 143 LSJS 480, the charge of possession "in connection with the smoking of a drug" had in his possession pipes known as "bongs". In the course of his judgment in that case, King CJ observed (485): "The relevant purpose is that which attaches to the possession of the appliance." 13. In Tran Nominees Pty Ltd v Scheffler and Ors (1986) 42 SASR 361, Cox J observed (391): "The phrase 'for use' in this sort of offence is not generically descriptive of the equipment itself - equipment that is manufactured or designed to be used in a prescribed manner - but refers rather to the use that the person possessing the equipment actually has in mind, whether it is to be so used by him or by someone else." 14. Those decisions, while not directed to consideration of the point at issue here, illustrate that the piece of equipment the subject of the charge may or may not be a piece of equipment the possession of which will attract liability under s.31, depending upon the purpose for which the possessor intended to use the item, or intended others to use it. It is understandable that the section should be construed in that fashion. A pipe may be designed and manufactured for the smoking of tobacco. A defendant, however, may have it in his or her possession specifically to use in connection with the smoking of a drug, in which event there is no reason to suppose that he or she should escape conviction simply because the pipe was constructed for another purpose. 15. As Mr Gupta of counsel for the appellant pointed out on the hearing of the appeal, a variety of items have been held to constitute a piece of equipment for the purposes of the section. Items the subject of charges under the section include a plastic bottle with a piece of green hose coming out from one side (Bobridge v Sweatman (1979) 83 LSJS 143), a tyre gauge (McCarthy v Liddy (1984) 115 LSJS 251), and a clay pipe (Bock v Glenn (1984) 115 LSJS
245). In my opinion, the learned Magistrate appealed from erred in holding that it was necessary that the piece of equipment the subject of the charge should be capable of being used "by itself" for the purpose of smoking a prohibited substance, or in the case of a pipe, that it was necessary that the pipe be a whole pipe. 16. In the case of a hookah, with a flexible hose, the approach adopted by the learned Magistrate would mean that if in the course of smoking a prohibited substance in a hookah, the possessor of it apprehending the approach of the police, threw away the flexible hose and mouthpiece so that it was lost, he might escape conviction, even if he was found with the bowl still smoking in front of him. 17. Putting the matter more generally, on the approach adopted by the learned Magistrate, when equipment is detachable, possessors could avoid conviction simply by concealing some part of it. 18. In my opinion, the words "any piece of equipment" in s.31(1)(c) of the Controlled Substances Act are apt to describe a part of a pipe, or other piece of equipment. It is not necessary to have regard to the question whether even a small or minor part such as a screw could be regarded as sufficient. In my opinion, where there is a substantial part of a whole piece of equipment, that is sufficient to justify a conviction, so long as the other elements required by the section are satisfied. 19. Ms Whimp, who appeared for the respondent, contended that even if the pipe bowl constituted a piece of equipment within the meaning of the section, evidence of the conversation with the respondent which was clearly sufficient to establish that it was "for use in connection with the smoking" of a drug, should have been excluded in the exercise of the Court's discretion. She based that submission on the evidence of the state of insobriety of the respondent at the time the discussion with the arresting officers took place. 20. There may well be circumstances in which a state of insobriety or partial sobriety may result in exclusion from evidence of statements made by an accused person; see Smith (1992) 58 SASR 491. Of course, as the matter proceeded ex parte, the learned Magistrate was not asked to exercise a discretion to exclude the evidence. No doubt this Court could take a different view of the matter once the point was taken on appeal, but in all the circumstances, I am not satisfied that this Court should interfere. 21. It does appear, however, that there is an element of unfairness in the fact that the respondent clearly made an unguarded statement after having been apprehended under the Public Intoxication Act, which empowers an arrest even though no offence has, on the face of it, been committed. 22. Having regard to the circumstances, I invited Mr Gupta to obtain instructions as to whether or not, if the appeal was upheld on the relevant point of law, the complainant would wish to take the matter any further. 23. Following the hearing of the appeal, I received a communication from him indicating that the complainant quite properly would not wish to take the matter any further in the event of the appeal being otherwise upheld. 24. There will, therefore, be an order allowing the appeal, and quashing the order of dismissal of the complaint. I do not, however, substitute a conviction or refer the matter back to the Magistrates Court for further hearing. 25. I will hear the parties as to the costs.